Allahabad High Court
Rt.Rev.A.R.Stephen And Another vs D.J. Gorakhpur And Others on 20 February, 2019
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Court No. - 2 Case :- WRIT - C No. - 8607 of 2008 Petitioner :- Rt.Rev.A.R.Stephen And Another Respondent :- D.J.,Gorakhpur And Others Counsel for Petitioner :- A.D. Saunders,Prabhakar Awasthi,Satya Prakash,Shailendra Counsel for Respondent :- S.C.,Ankush Tandon,Gajendra Pratap,Pradeep Upadhyay,S.B.Singh,Suresh Chandra Dwivedi Hon'ble Suneet Kumar,J.
1. Heard Sri A.D. Saunders, learned counsel assisted by Ms Mahima Joseph, learned counsels for the petitioners and Sri Gajendra Pratap, learned Senior Advocate assisted by Sri Ankush Tandon and Sri J.K. Srivastava, learned counsels for the respondents.
2. The instant writ petition is directed against the order dated 29 January 2008 passed by the Court Observer/first respondent, District Judge, Gorakhpur, holding that the third respondent, Sri Samual P. Prakash is the President of the Committee of Management, thereby, rejecting the claim setup by the petitioner. The other relief claimed in the writ petition is depended on the outcome of the main relief.
3. The writ petition has a checkered history and the matter has been remitted by the Supreme Court to be decided afresh without being influenced by the earlier decisions of the learned Single Judge and the Division Bench.
4. The facts, briefly stated, is that St. Andrews Intermediate College, Gorakhpur1, is a recognized minority educational institution, governed by the provisions of the Intermediate Education Act, 19212 and the Regulations framed thereunder. There is an approved Scheme of Administration which governs the Institution and the institution is managed by a Committee of Management constituted under the Scheme of Administration.
5. A dispute arose with regard to the Committee of Management, consequently, an order came to be passed by the Joint Director of Education on 20 December 2002 appointing an Authorized Controller. The Authorized Controller held election of the Committee of Management on 11 March 2003 and a Committee of Management came to be constituted with Sri Ajai Singh as the Manager. The Committee of Management was duly recognized by the Regional Committee vide order dated 29 May 2003. The order appointing the Authorized Controller and the subsequent order recognizing the Committee of Management by the Regional Committee was subjected to challenge in separate writ petitions (Writ Petition No. 437 of 2003 and Writ Petition No. 30710 of 2003). The writ petitions came to be decided by a common judgment and order dated 27 February 2006, the order appointing the Authorized Controller, as well as, the order passed by the Regional Committee granting recognition to the elected Committee of Management was quashed, inter alia, on the ground that the Institution being a minority institution, no Authorized Controller could have been appointed.
6. The writ court order came to be challenged in two appeals (Special Appeal No. 242 of 2006 and Special Appeal No. 1153 of 2007). The appeals came to be disposed of by a common order on 23 November 2007. The directions passed therein reads thus:
"However, during the course of argument learned counsel for the parties after going through the Scheme of Administration admitted that for the post of Vice-President, Manager and Assistant Manager, elections have to be held by the Members of Committee of Management. In these circumstances, learned counsel for the parties agreed that the Committee of Management of the College be directed to hold election for the post of Vice-President, Manager and Assistant Manager in the manner as provided in the Scheme of Administration and for the purpose of supervising the aforesaid election, an authority may be nominated by this Court so that the aforesaid elections may be conducted timely and peacefully.
In view of the aforesaid, as agreed by learned counsel for the parties, we dispose of these appeals with the following directions:-
(1) The District Judge, Gorakhpur or an Additional District Judge, to be nominated by the District Judge, shall act as observer (hereinafter referred to as the "Court Observer") for holding election for the post of Vice-President, Assistant Manager and Manager of Committee of Management of the College in accordance with the Scheme of Administration of the College.
(2) The Court Observer shall find out as to whether the Committee of Management is duly constituted as provided in the Scheme of Administration and in case any vacancy of member is existing, shall request the concerned body or the College to nominate or co-opt a member in order to complete the strength of Committee of Management.
(3) We further provide that in case any such request is made by the Court Observer, the concerned body or authority shall be under obligation to carry out such directions of the Court Observer within the time prescribed by him.
(4) As soon as composition of Committee of Management is completed, the process for holding election of the office bearer namely, Vice-President, Manager and Assistant Manager shall be initiated and completed within a period of two months thereafter.
(5) All the parties shall cooperate with the Court Observer for holding aforesaid elections peacefully and in accordance with the Scheme of Administration.
(6) The entire exercise, as directed above, shall be completed by the Court Observer within a period of four months' from the date of production of certified copy of this order before the District Judge, Gorakhpur.
(7) Till the process of election is completed, as directed above, the arrangement as is continuing in the institution under the interim orders of this Court, shall continue.
Learned counsel for the parties agreed with the aforesaid directions and stated that they shall cooperate with the Court Observer for compliance of the aforesaid directions.
No costs."
7. Pursuant thereof, the Court Observer/District Judge passed the impugned order dated 29 January 2008 holding that the list of members of the Committee of Management furnished by the third respondent, Sri Samual P. Prakash, Bishop of Lucknow, Anglican Church of India is valid list of members constituted according to the Scheme of Administration, thereby, directing that the election to the office of Vice President, Manager, Assistant Manager shall be held on the list furnished by Sri Samual P. Prakash. In other words petitioner was non-suited. The District Judge since was remitting the office two days following the passing of the impugned order, consequently, appointed Sri S.K. Saxena, Additional District Judge as Court Observer to oversee the elections pursuant to the impugned order. The order passed by the District Judge in the capacity of Court Observer is under challenge in the instant writ petition.
8. The impugned order in earlier round of litigation came to be quashed by my predecessor vide judgment and order dated 23 May 2008, wherein, the District Judge was directed to take fresh decision on the question, as to who are the valid members of the Committee of Management entitled to hold elections to the three office bearers i.e. Vice President, Manager and Assistant Manager. Aggrieved, the third and fourth respondent assailed the order in writ appeal being Special Appeal No. 808 of 2008 (Samual P. Prakash, Bishop of Anglican Church vs. District Judge, Gorakhpur). The appellate court set aside the writ court order and remanded the matter to the learned Single Judge for decision afresh.
9. The order and judgment of the Division Bench came to be challenged by the petitioners, herein, in Special Leave Petition No. 27506 of 2008 (S.L.P.). Though the S.L.P. was dismissed by the Hon'ble Supreme Court on 28 November 2008 but the Court directed that the matter be decided afresh without being influenced by any observations made by Single Judge or by Division Bench in any connected matter. The order reads thus:
"We are not inclined to interfere in this matter. However, we make it clear that the learned Single Judge shall decide the matter afresh on the basis of existing materials, uninfluenced by any observation be it of the learned Single Judge or the Division Bench in any connected matter."
10. In the aforementioned backdrop and pursuant to the order of the Hon'ble Supreme Court the writ petition is being heard on merits.
11. Before I came on the merit of the impugned order, it would be apposite to have a birds eye view with regard to the history of Churches in India, in particular, of Churches in north India. The missionaries of different sects and denominations came to India and established their Churches for propagation of protestant faith of Christian religion. The common object was to reveal Christ by means of evangelistic, educational, medical, literary and charitable activities to the establishment of the Kingdom of God. The Church was propagating Christianity in India during the British Rule. The Church in India were part of the Church of England and were known as Church of England in India.
12. The Church of England resolved to dissolve the legal union between the Church of England and Church of England in India for which a Measure was passed by the National Assembly of the Church of England to provide for the dissolution. Consequently, the Indian Church Measure Act, 19273 was enacted and notified on 4 February 1928. As a follow up action, the Indian Church Act, 19274 was enacted. The dissolution of the legal union between Church of England and Church of England in India came to be notified on 15 February 1930. In other words, the Church of India came into existence consequent to the Measure Act, 1927 and Act, 1927.
13. After the dissolution of the legal union between the Church of England and the Church of England in India and upon the creation of Pakistan, Burma and Ceylon, the Church of England in India was named as The Church of India, Pakistan, Burma and Ceylon (for short C.I.P.B.C.). This Church (C.I.P.B.C.) was commonly known as the Church of Anglican Communion. The deliberation on the unification of Churches in India continued since 1930 with an object to have a single Church upon unification and amalgamation of all Churches. A Round Table conference was held at a New Delhi in 1959 resulting in the appointment of "Negotiating Committee" to continue deliberations for union of Churches. Finally the Church of North India5 was constituted at Nagpur on 29 November 1970, bringing within its fold by unifying six Churches, namely:
1. The Council of the Baptist Church in Northern India;
2. The Church of India, Pakistan, Burma and Ceylon (C.I.P.B.C.);
3. The Methodist Church (British and Australian Conference);
4. The Disciples of Christ;
5. The United Church of Northern India;
6. The Church of Brethren in India;
14. The C.N.I. has its own Constitution. The Synod, the Apex Body of the C.N.I., has its registered office at New Delhi. Under the Synod there are various Dioceses constituted on the basis of territorial limits. Each Diocese has a Bishop, elected by the Synod, as per the prescribed procedure. The elected Bishop is thereafter appointed the Bishop of a particular Diocese. On the recommendation of Diocese Council of Lucknow Diocese, the Executive Committee of the Synod of the Churches of C.N.I. approved the division of Diocese of Lucknow by creating Diocese of Agra in 1976. The western part of the then undivided State of Uttar Pradesh came under the Diocese of Agra and the eastern part of Uttar Pradesh was under the jurisdiction of Diocese of Lucknow. The Lucknow Diocese Trust Association6, a charitable and religious trust incorporated in 1924, duly registered under the Indian Companies Act, 19137 having its registered office at Allahabad. All the properties of the Church, particularly C.I.P.B.C. was held, managed and controlled by L.D.T.A.
15. It is urged that after the unification of Churches all the properties within the Diocese of Lucknow were under the jurisdiction of L.D.T.A. After the creation of Diocese of Agra, the Agra Diocese Trust Association (A.D.T.A.) was incorporated as a charitable company in 1988 with the approval of the Synod of C.N.I. The Bishop of Dioceses of Agra is the Chairman of A.D.T.A.
16. The instant case relates to Diocese of Lucknow. The Institution falls within the jurisdiction of Dioceses of Lucknow of C.N.I.
17. The Institution is established and administered by Christian community since 1828. At the time of enactment of Act, 1921, the Institution was under the control of a society known as Christian Missionary Society of the C.I.P.B.C. Scheme of Administration was framed in terms of Act, 1921 which was duly approved in 1966, that is, prior to the unification of Churches and the establishment of C.N.I. As per the preamble to the Scheme of Administration, C.I.P.B.C. would include its "successors". After unification of six Churches referred to earlier, it is urged that C.N.I. became the sole successor of C.I.P.B.C. Since 1970 the Bishop, Dioceses of Lucknow, C.N.I. was appointed ex-officio President of the Committee of Management of the Institution. The first president, after unification, was Rt. Rev. Deen Dayal, followed by Bishop A.R. Yusuf, Rt. Rev. A.R. Stephen. The petitioner, herein, being Bishop, Diocese of Lucknow, C.N.I. became the President under the Scheme of Administration. After his retirement, Rt. Rev. Morris Edgar Dan, followed by Rt. Rev. Peter Baldev, Bishop of Diocese of Lucknow, C.N.I. became the President under the Scheme of Administration. The signature of Rt. Rev. Peter Baldev was duly attested by the educational authorities.
18. In the aforementioned admitted backdrop, it is urged by the learned counsel for the petitioner that since 29 November 1970 till date there has been no other Bishop of any other Church even for a single day but the Bishop duly appointed by the Synod of C.N.I. as Bishop of Diocese of Lucknow that has functioned as the President of the Institution. It is, therefore, submitted by the learned counsel for the petitioner that the third respondent is a rank trespasser and has no connection, direct or indirect, with the affairs of the Institution or the Dioceses of Lucknow. It is urged that the third respondent claims to be the Bishop of the Anglican Church of India situated at St. Peter's House, Dehradun (Uttaranchal), which falls within the jurisdiction of Dioceses of Agra. The Court Observer has exceeded the mandate of the Court by deciding the lis between the parties; the impugned order is void being without jurisdiction. In support of his submission reliance has been placed on the decision rendered in Vinod Kumar M Malviya Etc. vs. Maganlal Mangaldas Gameti and others8; Christ Church McConaghy, School Society, Lucknow and another vs. Registrar Firms, Societies and Chits, Lucknow and others9.
19. In rebuttal, learned Senior Counsel appearing for the third and fourth respondent does not dispute the facts but submits that the writ petition is premature; on the directions of this Court the Court Observer determined the electoral college after considering the rival lists of the Managing Committees, therefore, it is urged that the petitioner would have remedy to assail the elections before the Regional Committee under sub-section (7) of Section 16 of Act, 1921. The Court Observer/District Judge has acted within his jurisdiction conferred by this Court by deciding the valid list of members of the Management of Committee submitted by the third respondent. It is further urged that there is no such entity as C.N.I. in the Scheme of Administration, but on the contrary the Scheme refers to C.I.P.B.C.; the third respondent is the Bishop of Diocese of Lucknow of C.I.P.B.C., therefore, rightly held to be the President of the Committee of Management of the Institution. In support of his submission reliance has been placed on the decisions rendered in Basant Prasad Srivastava and another vs. State of U.P. and another10; Anugarh Narain Singh and another vs. State of U.P. and others11; Sri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another vs. State of Maharashtra and others12; Board of Control For Cricket In India and another vs. Netaji Cricket Club and others13 and Nelson and another vs. Kallayam Pastorate and others14.
20. Rival submissions fall for consideration.
21. The question, primarily, involved in the instant writ petition is whether the Court Observer/District Judge, Gorakhpur exceeded the mandate/jurisdiction in deciding as to which of the contesting party is the President of the Committee of Management under the Scheme of Administration or in other words the Diocese of Lucknow.
22. The facts inter se parties are not in dispute. It is not being disputed by the contesting respondent that the Churches referred to herein above, unified under C.N.I. and since 1970 the Bishop of Diocese of Lucknow appointed by the C..N.I. has been the ex-officio President of the Institution under the Scheme of Administration. The petitioner has pleaded and given the names of all the Bishop, Diocese of Lucknow, C.N.I., who were the President of the Committee of Management since 1970. It is also not disputed by the contesting respondent that the six Churches that unified with the C.N.I., there is no such Church as claimed by the respondent as the Anglican Church of India. It is urged by learned counsel for the respondent that C.I.P.B.C. is commonly referred to as Church of Anglican Communion and, therefore, C.I.P.B.C. referred in the Scheme of Administration is the Anglican Church of India. It is a far fetched inference not borne out from the material placed on record which would unfold in the later part of the order.
23. In the objection/application dated 5 January 2008 filed by the third respondent before the Court Observer with regard to the constitution of the Committee of Management of the Institution, the third respondent claimed himself to be the Bishop and Chairman of L.D.T.A. and reliance was placed on certain documents in support of the claim. L.D.T.A. is registered under the Companies Act. Reliance was placed on the Articles of Association of L.D.T.A. The application was signed by the third respondent in the capacity of Bishop of Lucknow Diocese and Chairman of L.D.T.A. Anglican Church of India and not of C.I.P.B.C. The address furnished thereon is of Dehradun, Uttranchal. The objection nowhere stated that at any point since 1970 the third respondent in the capacity of Bishop Diocese of Lucknow, Anglican Church of India had ever staked claim to the Committee of Management of the Institution. On the contrary it is not disputed even before this Court by the learned Senior Counsel appearing for the third respondent that the Bishops, Diocese of Lucknow appointed by the C.N.I. were continuously in charge of the management of the Institution in the capacity of ex-officio President.
24. It is also not being disputed by the learned counsel for the contesting respondent that the Registrar of Companies Uttar Pradesh and Uttranchal, Kanpur has filed a complaint against the third respondent under Section 628 of the Companies Act, 1956 alleging therein that the Forms 32 and 18 filed by the third respondent contains incorrect statements/information which attract the penal provision under Section 628.
25. The third respondent staked claim to the Committee of Management of the Institution primarily contending before the Court Observer that C.N.I. is not referred in the Scheme of Administration; C.I.P.B.C. the Church of the Anglican Communion is the Anglican Church of India and the third respondent is the Bishop, Diocese of Lucknow appointed by the Anglican Church of India, therefore, entitled to form the Committee of Management. In this backdrop, the provisions of the Scheme of Administration needs to be examined.
26. As per the Scheme of Administration, the Committee of Management shall consist of 16 members consisting of the following categories of members: Ex-officio Members including the Bishop of Lucknow. The office bearers consist of: (i) President (Bishop of Lucknow-Ex-officio); (ii) Vice President; (iii) Manager; (iv) Assistant Manager. The Vice President, Manager and the Assistant Manager are to be elected by the Committee of Management from amongst the members of the Committee. The term of the members and the office bearers other than the ex-officio Members of the Committee shall be three years from the date they are elected or nominated.
27. The authority to manage and conduct the affairs of the institution is vested in the Committee of Management which is responsible for properly running the Institution in accordance with the control of the L.D.T.A. The property, land and building of the Institution (School) is vested in the L.D.T.A., a body invested with authority to control and manage the educational institution under the Lucknow Diocesan Council. The authority to manage and conduct the affairs of the institution vests in the Committee of Management and Diocesan Education Board (for short D.E.B.) may exercise in accordance with the provisions of the Act, 1921 and Regulations framed thereunder and instructions issued from time to time by the authorities of the Education Department.
28. L.D.T.A. means the Lucknow Diocesan Trust Association a body registered under the Companies Act invested with the authority /administration and control of the property of the Lucknow Diocesan Council. C.I.P.B.C. means Church of India, Pakistan, Burma and Ceylon a body of the world wide Anglican Communion. The preamble requires the Institution to provide education primarily to christian children but also to the other representative of the caste and creed according to the faith, doctrine and practice of C.I.P.B.C. or its successors. The Institution is run under the auspicious of the Diocese of Lucknow of C.I.P.B.C.. The Scheme of Administration came to be approved in 1966 prior to the unification of Churches.
29. It is admitted that upon unification C.I.P.B.C. merged with C.N.I. and thereafter Bishop, Diocese of Lucknow appointed by the C.N.I. has been incharge of the affairs of the Institution. The preamble of the Scheme of Administration requires the Institution according to the faith, doctrine and practice of C.I.P.B.C. or its successors. The properties of the Institution vest in a Company (L.T.D.A.) that has no bearing with the management of the Institution which is governed as per the provisions of Act, 1921 and the Scheme of Administration framed and approved thereunder. It is not the case of the third respondent that C.I.P.B.C. after unification has withdrawn from the unification or staked claim on the Institution outside the C.N.I. The Scheme of Administration also does not refer to the Anglican Church of India nor such a Church merged with the C.N.I. It could be that Anglican Church of India is a separate Church outside the C.N.I. as is being submitted by the learned counsel for the petitioner. That is however, not relevant to decide the controversy at hand nor has this Court been called upon to decide the lis between the parties. The controversy is to be examined within the scope and ambit of Act, 1921.
30. The question, therefore, is as to whether it is open to the Election Observer or for that matter the Competent Authority under the Act, 1921 to enter into disputed question of fact and law and decide the lis between the parties which has no relevance or connection with the management of the affairs of the Institution or constitution of the Committee of Management.
31. Section 16-A was inserted in Act, 1921 by U.P. Act No. 35 of 1958 mandating that there shall be a Scheme of Administration for every Institution whether recognized before or after the commencement of the Intermediate Education (Amendment) Act, 1958. The Scheme of Administration shall amongst other matters provide for the constitution of a Committee of Management vested with authority to manage and conduct the affairs of the Institution. The Scheme of Administration of every institution shall be subject to approval of the Director and no amendment to or change in the Scheme of Administration shall be made at any time without the prior approval of the Director. Sub-clause (7) was inserted by U.P. Act No. 1 of 1981 providing for redressal of dispute with regard to the management of an institution; person found by Regional Deputy Director of Education (now Regional Committee), upon such enquiry to be in actual control of the affairs may, for the purposes of Act, 1921 be recognized to constitute the Committee of Management of such Institution until a Court of competent jurisdiction directs otherwise. Sub-section (7) reads thus:
"(7) Whenever there is dispute with respect to the Management of an institution, persons found by the Regional Deputy Director of Education, upon such enquiry as is deemed fit to be in actual control of its affairs may, for purposes of this Act, be recognized to constitute the Committee of Management of such institution until a Court of competent jurisdiction directs otherwise:
Provided that the Regional Deputy Director of Education shall, before making an order under this sub-section, afford reasonable opportunity to the rival claimants to make representations in writing.
Explanation. - In determining the question as to who is in actual control of the affairs of the institution the Regional Deputy Director of Education shall have regard to the control over the funds of the institution and over the administration, the receipt of income from its properties, the Scheme of Administration approved under sub-section (5) and other relevant circumstances."
32. It is evident from the plain reading of Sub-section (7) of Section 16-A that the scope of enquiry in the event of dispute with respect to the management of an Institution, is confined to 'actual control' and the crucial date for deciding the actual control under the above section is the date on which the dispute arises. A person in actual control alone can be recognized to constitute the Committee of Management. The explanation to Sub-section (7) clarifies that while determining as to who is in actual control of the affairs of the institution the Regional Committee shall have regard to the control over the funds and over the administration of the institution and receipt of income from its properties. From a bare reading of sub-section (7), it is apparently clear that the question of legality or otherwise of the dispute can only be gone into incidentally for the purpose of deciding the rival claim of management which is based basically on effective/actual control to be determined with reference to the conditions as mentioned in the Section itself, namely, (a) control over finance; (b) administration over the institution; (c) income from its properties.
33. In other words, it is not open to the authority under Sub-section (7) to enter into disputed questions of fact and law and adjudicate the lis between the parties. The Election Observer appointed to oversee the elections has a role much narrower to that of the Regional Committee. Election Observer is not a Tribunal vested with adjudicatory power. In the facts of the case in hand Court Observer exceeded his brief and jurisdiction in deciding the lis between the contesting parties, as to who is the Bishop of Diocese of Lucknow, appointed by the C.N.I. or the Bishop appointed by the Anglican Church of India. It is not open to the Court Observer to examine the evidence/document relied upon by the third respondent to return a finding that the C.I.P.B.C. is the Anglican Church of India and the third respondent is the Chairman of L.D.T.A. The dispute was required to be decided at the most on the principle of actual control. It is admitted by the contesting respondent that at no point of time since 1970 the Bishop of Lucknow appointed by the so called Anglican Church of India was in control of the management/administration of the Institution under the Scheme of Administration. The Court Observer under the garb of deciding, prima facie, as to who was the ex-officio President of the outgoing Committee of Management has implanted a stranger who was directly or indirectly never connected with the affairs of the Institution for last 35 years. The Education authorities have at regular intervals attested the signature of the Bishop of Lucknow appointed by the C.N.I. the successor of C.I.P.B.C. and not of Anglican Church of India. C.I.P.B.C. as a Church after merger within C.N.I. exists as a religious entity on its own is doubtful.
34. The Church referred to in the Scheme of Administration is C.I.P.B.C. commonly known as Church of Anglican Communion, that would not mean on plain reading that C.I.P.B.C. is the Anglican Church of India as is being submitted by the contesting respondent. Neither C.N.I. nor the Anglican Church of India is mentioned/referred to in the Scheme of Administration. It is admitted by the contesting respondent that C.I.P.B.C. is one of the Church that merged with the C.N.I. Anglican Church of India is not a part of the unification nor any document or material has been brought on record to show that prior to merger C.I.P.B.C. is the Anglican Church of India or vice versa. The contesting respondent claims to be the Chairman of L.T.D.A., the company in which the properties of the Institute is vested. This fact, though is disputed. Be that as it may, the Chairman of the company has nothing to do with the Committee of Management of the Institution, which is to be constituted and governed by the Scheme of Administration. The Committee of Management of the Institution and the management of the Company are separate entity governed under separate statutes. Company has nothing to do with the affairs and management of the Institution governed under Act, 1921.
35. The contesting respondent claims to be the Bishop of Diocese of Lucknow, Anglican Church of India and not of C.N.I. As per his own case Anglican Church of India was neither directly nor indirectly in control of the affairs of the Institution. On the contrary it is admitted that the Diocese of Lucknow appointed by the C.N.I. after merger of the Churches was in actual control of the Institution since 1970 till date. Prior to the merger, as per the Scheme of Administration, the Bishop Diocese of Lucknow of C.I.P.B.C. was the ex-officio President of the Committee of Management of the Institution. After merger there is no such Church as C.I.P.B.C., it is the C.N.I. and since then the Bishop, Diocese of Lucknow appointed by the C.N.I. has been the ex-officio President of the Institution which was duly approved and recognized by the educational authorities. The signatures of the Bishop C.N.I. was attested from time to time. The absence of amendment of the Scheme of Administration after 1970 replacing C.I.P.B.C. with C.N.I. would not help the third respondent. The preamble clearly states that C.I.P.B.C. or its successor. C.N.I. succeeded C.I.P.B.C. is inferable from the preamble.
36. In any case, there is no provision under the Act, 1921 or Regulations framed thereunder authorizing any authority to enter into disputed questions of fact and law, the lis between the parties has to be adjudicated in an appropriate forum in accordance with law. The Court Observer or the Regional Committee is not competent to enter the dispute beyond what is provided under the Act, 1921 and if they do so they would exceed their jurisdiction and render the decision void. The Court Observer by passing the impugned order has exactly done what is prohibited on plain reading of sub-section (7) of Section 16A.
37. In Christ Church McConaghy (supra) a challenge was raised to the validity of the order passed by the Deputy Registrar, Firms, Societies and Chits, Lucknow. The question posed was, as to whether the Deputy Registrar exceeded his powers under Section 4 of the Societies Registration Act, 1860. The Court in paragraph 34 held that under Section 4 the Deputy Registrar was not empowered to decide any lis pertaining to control and management of the petitioner-society nor the validity or continuance of the Committee of Management in control since 1970 or its office bearers or their election. The claim set up before the Deputy Registrar by the contesting respondent therein was that he was a part of C.I.P.B.C. and Bishop of Lucknow and staked claim on the strength of the Supreme Court judgment in Vinod Kumar M. Malvia (supra), the Court rejected the claim holding that the respondent therein nor any person claiming under C.I.P.B.C. had staked any claim for the management of the petitioners-society since 1970 after unification of the Churches with C.N.I., therefore, their defacto existence was seriously questionable. The observation of the Court reads thus:
"He (Deputy Registrar) failed to appreciate that neither the opposite party no. 3 nor any other person claiming under CIBC or CIPBC had staked any claim to the management of the petitioner-society since 1970, therefore, their defacto existence was seriously questionable. He also failed to go into the question as to whether the CIBC or CIPBC was actually functional in India after its General Council passed the resolution on 29.11.1970 for its merger with and formation of CNI, specially as there was no order or decree of any court nullifying such merger or creation. In fact these issue were beyond the scope of an inquiry under Section 4. ..... The claim of opposite party no. 3 was to the management of petitioner-society. The Deputy Registrar should not have ignored the admitted fact that opposite party no. 3 and his associates had not been in control and management of the petitioner-society for the last 34 years. He was neither an ordinary nor a life member of the society whether prior or after 1970. He claimed to be Bishop of Lucknow Dioceses and ex-officio Chairman of petitioner-society as per its bye-laws. He claimed to have been elected or enthroned as Bishop of Lucknow way back in the year 2005 but he never raised any claim or expressed any willingness to function as ex-officio Chairman of the petitioner-society. This was a very relevant fact which should have weighed with the Deputy Registrar for the purpose of registration/acceptance of the list of officer-bearers or members of the society submitted by opposite party no. 3 but he failed to take it into account."
38. The Court in para 43 observed that absence of amendment in the bye-laws by replacing the reference to C.I.P.B.C. by C.N.I. is not very material what was relevant to be considered by the Deputy Registrar was as to who was in control of the management of the society since 1970.
"The merger of CIBC/CIPBC with CNI on 29.11.1970 not being in dispute, though its validity being disputed by opposite party no. 3, considering the indisputable fact that CNI being in control of the petitioner-society since then, the absence of amendment in bye-laws replacing the reference to CIBC by CNI is not very material specially as CIBC itself subsequently became CIPBC which is also not mentioned in the bye-laws by way of any amendment."
39. The decision though rendered under the provisions of the Societies Registration Act, but the observations made therein is relevant to the present case. It was beyond the scope of the Court Observer to enter into issues involving complicated questions of fact and law which could not have been decided by him while exercising limited power conferred upon him to oversee the elections. The dispute as to who is the Diocese of Lucknow could not have been gone into by the Election Observer. Election Observer should have rejected the claim of the contesting respondent outright as he never claimed to be in control of the affairs of the Institution and nor was he the President of the out going Committee of Management. There being no reference to C.N.I. in the Scheme of Administration after unification is of no relevance in the backdrop of the admitted fact that the contesting respondent was a stranger to the Committee of Management of the Institution and had not staked his claim and right to the Committee of Management at any point of time. In the Scheme of Administration C.I.B.P.C. is not referred to as Anglican Church of India, nor did the Anglican Church of India merge with C.N.I. There is merit in the contention of the learned counsel for the petitioner that by the impugned order a stranger and rank trespasser was implanted into the Committee of Management, thereby, sabotaging the elections to the Committee of Management in order to usurp the properties of the Institution.
40. The contention of the learned counsel for the contesting respondent that the petition is premature cannot be accepted in the backdrop of the discussion herein above that the third respondent is a complete stranger to the Institution. The Anglican Church of India to which he claims to have been appointed as Dioceses of Lucknow was never in control of the Management of the Institution. If the plea of the learned counsel for the respondent is accepted, then a stranger and a rank trespasser whose defacto existence in the capacity as is being claimed by him is doubtful has been imposed by the impugned order. The Court/Election Observer has implanted an outsider in the management of the Institution which was beyond the authority mandated upon him by this Court. The Court Observer has done something which otherwise could not have been done even by the Regional Committee while exercising power under Sub-section (7) of Section 16-A. Determination of rights and title of rival parties in view of the explanation to sub-section (7) is left to be decided by the competent Court and not by the educational authorities and certainly beyond the competence and jurisdiction of the Election Observer.
41. Having due regard to the facts and circumstances of the case, the writ petition deserves to be allowed. The impugned order passed by the first respondent/Court Observer is set aside and quashed. The District Judge, Gorakhpur is directed to oversee the elections to the office of the Committee of Management within ten days from the date of service of this order, in terms of the Division Bench decision dated 23 November 2007. The writ petition is allowed.
42. It is made clear that the discussion and observations made herein above are only for the purpose of adjudicating the validity of the impugned order and is confined to the pleadings and rival contentions of the parties. The order shall not prejudice the rights of the parties in any pending adjudication, in any court or in taking remedy before the appropriate forum for adjudicating their respective rights and title.
Order Date :- 20.02.2019 S.Prakash